# Should Bork have been borked? **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2022, 5:11pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709 "2022-03-25T17:11:34Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 26, 2022, 1:50pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/61 "2022-03-26T13:50:20Z")
> [@UltraVires](#): > > Nobody believes that the text should refer only to 18th century items; that is a strawman argument. Have you ever read Clarence Thomas’ opinions? “When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted.” McDonald v. City of Chicago, 561 U.S. 742, 828 (2010) (bolding added) This is man known to cite 18th century dictionary definitions of words (for example, I’ve seen him argue that liberty is limited to “not being in jail”, because that’s what people thought of as “liberty” in the 1700s) I respectfully disagree with your dismissal of my claim. [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2555&context=faculty\_publications](https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2555&context=faculty_publications) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 1:54pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/62 "2022-03-26T13:54:16Z")
Yes. But literally nobody believes that the words refer to things invented then and to no future inventions. They wouldn’t believe that a carriage could not be searched, but if a motorized version was invented in the future, that it could be searched at will. I think you are trying to prove too much here. Nobody today or then would interpret words in a fashion to exclude future technologies. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 1:56pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/63 "2022-03-26T13:56:54Z")
See Scalia in Heller: > Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the [Second Amendment](https://www.law.cornell.edu/supct-cgi/get-const?amendmentii) . We do not interpret constitutional rights that way. Just as the [First Amendment](https://www.law.cornell.edu/supct-cgi/get-const?amendmenti) protects modern forms of communications, _e.g._ , _Reno_ v. _American Civil Liberties Union_ , [521 U. S. 844](https://www.law.cornell.edu/supremecourt/text/521/844), 849 (1997) , and the [Fourth Amendment](https://www.law.cornell.edu/supct-cgi/get-const?amendmentiv) applies to modern forms of search, _e.g._ , _Kyllo_ v. _United States_ , [533 U. S. 27](https://www.law.cornell.edu/supremecourt/text/533/27), 35–36 (2001) , the [Second Amendment](https://www.law.cornell.edu/supct-cgi/get-const?amendmentii) extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. You are torching strawmen. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 26, 2022, 2:02pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/64 "2022-03-26T14:02:23Z")
> [@UltraVires](#): > > I think it is pretty clear that the 14th Amendment only prohibits states from passing unequal laws and that Section 5 gives Congress the power to enforce that prohibition. And the enforcement of that prohibition was the federal Civil Rights Act, which was (in my opinion) a constitutional law pursuant to Section 5. You seem to be saying that the 14th amendment gave congress the power to, I guess, negate a discriminatory state law. Instead, congress affirmatively passed a federal law which overrode state sovereignty on this issue. > [@UltraVires](#): > > Private discrimination is not in the ambit of the 14th Amendment by its clear words. > > ETA: And if it is, does that extend to the privacy of the home? The question, as I see it, is what did the civil rights act cover? Only then can we address whether it was constitutional pursuant to the 14th amendment. I don’t believe that it sought to restrict private homes. And I see a distinction between such an attempted restrict and one applied to a business opened to the public. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 26, 2022, 2:04pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/65 "2022-03-26T14:04:21Z")
> [@UltraVires](#): > > See Scalia in Heller So in response to my criticism of Thomas, you’ve quoted Scalia. They had different constitutional approaches. (While I often disagreed with Scalia, he wasn’t insane. Clarence - like his wife - is on another level). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 2:04pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/66 "2022-03-26T14:04:53Z")
> [@Moriarty](#): > > The question, as I see it, is what did the civil rights act cover? Only then can we address whether it was constitutional pursuant to the 14th amendment. I don’t believe that it sought to restrict private homes. And I see a distinction between such an attempted restrict and one applied to a business opened to the public. If you look at the text of the 14th Amendment, it is prohibitory on what States may do, not on what private individuals or private business owners may do. If Howard Johnson motels excludes blacks in the south, that is not a State doing the discrimination and thus clearly does not fall within the prohibitions of the 14th Amendment or becomes part of Congress’ power to cure. That is why the Court resorted to the commerce clause in upholding the 64 Civil Rights Act. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [March 26, 2022, 2:11pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/67 "2022-03-26T14:11:37Z")
> [@Isamu](#): > > If the law is bad, change it by voting out the people who made bad laws. Not by the judges because then the bad law makers stay in power. Soooo…you really don’t get the purpose of the Supreme Court, eh? Stranger ---
**Author:** ![puzzlegal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puzzlegal/32/3827_2.png) [@puzzlegal](https://boards.straightdope.com/u/puzzlegal)\ **Post date:** [March 26, 2022, 2:13pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/68 "2022-03-26T14:13:22Z")
> [@UltraVires](#): > > You are torching strawmen. Or you are picking and choosing how “original” to be. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 2:17pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/69 "2022-03-26T14:17:01Z")
> [@Stranger\_On\_A\_Train](#): > > Soooo…you really don’t get the purpose of the Supreme Court, eh? Respectfully, I think it is you that doesn’t get the purpose of a Court. It is not there to strike down “bad” laws, only unconstitutional ones. And the debate here WRT Bork is that just because a result is good (strike down anti-contraception laws) doesn’t mean that the law was unconstitutional. > [@puzzlegal](#): > > Or you are picking and choosing how “original” to be. No. Nobody has argued that originalism meant that the people would be blind to the future to similarly situated things. I think that is true now and then. A law passed in the 1980s against possessing child pornography would equally apply to digital images and literally nobody, not even Clarence Thomas, would think otherwise. If you asked an average person on the street in 1982 “What if we had phones with displays on them that could show child pornography? Do you think that the recently passed law would apply?” You would get 100% yes. This is just straining to try to take a jab at originalism that doesn’t exist. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 26, 2022, 2:32pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/70 "2022-03-26T14:32:21Z")
> [@UltraVires](#): > > Nobody has argued that originalism meant that the people would be blind to the future to similarly situated things. I’m reminded of the guy who walks up to a woman and asks her to sleep with him for a billion dollars. When her eyes light up, he says “or $10.” She gasps. “I’m not some whore!” He replies, “We’ve already established what you are. Now we’re just haggling over price.” … You’re conceding that, in order for the law to be functional, it must be applied to analogous concepts that were not originally conceived by the drafters. But then you scoff at people who claim that there are things covered by the constitutional rights enshrined in the constitution even though they were not in the minds of those who wrote those laws. See, you’ve already established that you agree with reasoning by analogy to similarly situated things that were developed after the law was drafted. Now, we’re just haggling over scope. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 2:34pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/71 "2022-03-26T14:34:29Z")
At the risk of walking into a trap, I agree with you. If things developed after the drafting of the Constitution or any amendment, then that thing is covered if it is sufficiently similar to something analogous that was covered at the time of the framing. ETA: I await to see how we get from there to contraception being a fundamental right. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 26, 2022, 3:03pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/72 "2022-03-26T15:03:56Z")
> [@UltraVires](#): > > I await to see how we get from there to contraception being a fundamental right. I respect the fact that you might be a strict textualist, and aren’t going to agree with the contraception decision, but that’s still more intellectually honest than when people talk about limiting laws to their “original intent”, except when it’s convenient (cough _Heller_ cough) not to. And, for what it’s worth, I don’t like this “fundamental right” business. I think Obergefell was poorly decided, for example, and I would have written a concurrence. I don’t agree in resting the decision on a fundamental right to marriage. Rather, I believe it was an equal protection issue, in that men and women weren’t equally allowed to marry a man, and there is no rational basis for that exclusion. But, if that had been the law, it might have recognized gay people as a protected class (I think intermediate scrutiny should apply, same as sex discrimination), which means they’d have lots more recognized rights under the constitution. (And my suspicion was that the decision focused on marriage, rather than the class that is gay people, and that none of the justices deviated with my suggested concurrence, due to the internal negotiations necessary to get Kennedy to join the majority) [As to the contraception issue? I found this part of Justice White’s concurrence compelling > [@](#): > > There is no serious contention that Connecticut thinks the use of artificial or external methods of contraception immoral or unwise in itself, or that the anti-use statute is founded upon any policy of promoting population expansion. Rather, the statute is said to serve the State’s policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal. > Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State’s ban on illicit sexual relationships… > > A statute limiting its prohibition on use to persons engaging in the prohibited relationship would serve the end posited by Connecticut in the same way, and with the same effectiveness, or ineffectiveness, as the broad anti-use statute under attack in this case. I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law. I think it’s fair for the court to take a circumspect look at invasions of personal liberty and require the state to proffer a sufficient compelling justification and carefully tailored application. > [@UltraVires](#): > > But to use a generic right to privacy would seem to say that I have a right to beat my kids or use cocaine in private. It doesn’t follow from anything said in the text. The obvious negative repercussions of those hypothetical actions would seem to overcome the judicial skepticism I just mentioned - a state can pretty clearly offer up reasons why it should be able to interfere with a privacy interest when it results in a child’s injuries (drug use, in my opinion, is a bigger leap, but that’s another discussion altogether). Just because there is a right to privacy - or a due process right against arbitrary intrusions of liberty - doesn’t mean it’s inviolable. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 26, 2022, 3:23pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/73 "2022-03-26T15:23:44Z")
> [@UltraVires](#): > > But no, a national standard of abortion on demand MUST prevail, our Court be damned because of the insane advocacy on that side. Nothing that a Bork, Scalia, or Thomas would do would prevent legal abortions in California, New York, or Maryland. The false narrative on the other side is terrible. Would you be okay if guns were illegal to own in New York as long as they were legal in Texas? You shouldn’t be. If gun ownership is protected by the Constitution then it’s protected throughout the entire country, not just in the states where it’s popular. And the same is true about abortions, which are Constitutionally protected even if some people don’t like the fact that the Supreme Court said so. ---
**Author:** ![Roger\_That](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roger_that/32/8505_2.png) [@Roger\_That](https://boards.straightdope.com/u/Roger_That)\ **Post date:** [March 26, 2022, 3:30pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/74 "2022-03-26T15:30:37Z")
Do you suppose “Borked” caught on because it sounds like “porked”? “They porked us, boys, so we’re going to pork them right back for the rest of their nat’ral days!” ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 26, 2022, 3:34pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/75 "2022-03-26T15:34:59Z")
> [@Moriarty](#): > > I’m reminded of the guy who walks up to a woman and asks her to sleep with him for a billion dollars. When her eyes light up, he says “or $10.” > > She gasps. “I’m not some whore!” > > He replies, “We’ve already established what you are. Now we’re just haggling over price.” > … > You’re conceding that, in order for the law to be functional, it must be applied to analogous concepts that were not originally conceived by the drafters. > > But then you scoff at people who claim that there are things covered by the constitutional rights enshrined in the constitution even though they were not in the minds of those who wrote those laws. I think you’re glossing over a step. I don’t believe you’re _doing_ an analogy, when applying the word “effects”, if you’re saying that your car and your phone _are_ your effects. That’s, y’know, the thing that they wrote: they could’ve added, but didn’t add, words limiting that right to devices that had already been invented; they instead wrote the right as applying to — effects. It seems like one could (a) do that and (b) still consistently scoff at something else entirely. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 3:38pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/76 "2022-03-26T15:38:47Z")
This is the debate we are having. Did the Supreme Court get Roe right? I know we have been talking about Griswold, but that led to Roe, and the house was built on sandy ground. IF it is a constitutional right, then it does not depend on NY v. TX. If it is not, which is what this debate is about and what Bork was saying, then it should. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [March 26, 2022, 3:39pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/77 "2022-03-26T15:39:32Z")
> [@UltraVires](#): > > Nobody has argued that originalism meant that the people would be blind to the future to similarly situated things. I think that the argument is that an originalist needs to be able to think like an 18th century misogynistic racist. And the best originalists are the ones to whom that mindset comes easily. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 3:42pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/78 "2022-03-26T15:42:07Z")
> [@Moriarty](#): > > I think it’s fair for the court to take a circumspect look at invasions of personal liberty and require the state to proffer a sufficient compelling justification and carefully tailored application. How do you define an “invasion of personal liberty”? All laws tell you that you can’t do what you would like to do. What about contraception makes it a _protected_ liberty? The rational basis test that Justice White used can only be boiled down to the idea that he disagrees with the law. The rational basis test is never used except when it is used as a subjective judgment. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 26, 2022, 3:42pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/79 "2022-03-26T15:42:54Z")
> [@UltraVires](#): > > This was a not uncommon view in opposition to the Civil Rights Act. Barry Goldwater, a major party presidential candidate was against it. Nonetheless it would have had nothing to do with Bork as Justice. He didn’t say it was unconstitutional. That’s an … odd? … take on Bork’s position. Bork was pretty clearly on the record saying that public accommodations laws to stop racial discrimination violated an individual’s constitutional right to associate with whom he wants. "It is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them…. The trouble with freedom is that it will be used in ways we abhor.” Clearly, he would, as a justice, have found the public accommodation laws of the Civil Right’s Act to be unconstitutional. To think otherwise is simply a very poor attempt at post hoc rehabilitation of Bork. And the fact that other people held the same opinion (I gotta ask, do you agree with him?) is meaningless in the determination of whether Bork should have been on the Supreme Court. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2022, 3:46pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/80 "2022-03-26T15:46:39Z")
First, he disclaimed that position as early as the 1970s. And disagreeing with a law does not mean that the law is unconstitutional. I feel the need to keep repeating that. A bad law is not necessarily unconstutitonal. And second, why does my personal opinion matter? We are talking about Bork? I fear that you only ask that as a gotcha to try to make a personal attack. No, I disagree with opposition to the 64 Civil Rights Act on the merits. There are good constitutional arguments against it on the national level. [Previous page](https://boards.straightdope.com/t/should-bork-have-been-borked/961709.md?page=3) [Next page](https://boards.straightdope.com/t/should-bork-have-been-borked/961709.md?page=5)